Bar One : Should Richard Lubetzky Practice Law or Is He Morally Unfit? It's a Tangled Tale in the State Supreme Court.

GARRY ABRAMSTIMES STAFF WRITER

If Richard Lubetzky's fingerprint had not been found on an obscene post card, he might be a lawyer by now.

But it was and he isn't.

Therein hangs a tale as complicated as a billionaire's will, one that offers a rare--and still unfolding--glimpse behind closed-door disciplinary proceedings of the California State Bar. Last week, the California Supreme Court said it would review Lubetzky's petition for admission to the bar, the latest twist in a tangled tale that stretches to early in the last decade. The major elements include obscene phone calls, obscene mail and an eight-year legal dispute embroiling Lubetzky and several acquaintances.

Who made the calls and sent the post cards and letters is the heart of the disagreement. The California State Bar asserts that Lubetzky did and that, consequently, he is morally unfit to practice law. Lubetzky, who as a consumer-rights advocate has a history of criticizing the legal profession, claims innocence and says the obscenity controversy is a pretext by the state bar to block the admission of a maverick to the legal ranks.

Lubetzky, 38, of Los Angeles, developed an interest in consumer rights at UCLA, where he was graduated in 1974. His consumer-rights activism spurred him to study law at the University of West Los Angeles School of Law, and in 1980 he received his degree. Between 1980 and 1987, he took the California bar exam 13 times, finally passing in June, 1987.

(Lubetzky blames his lengthy assault on the bar exam partly on the turmoil brought by the long-running obscenity dispute. He concedes, too, that he is not the world's greatest test-taker.)

Whatever euphoria Lubetzky felt at passing the bar was squashed in September 1988 when he was notified that the State Bar planned to conduct a hearing on his fitness to practice law.

The hearing would "concern generally Mr. Lubetzky's moral character," according to a brief filed with the State Supreme Court by Kent Richland, Lubetzky's Beverly Hills attorney. Furthermore, the hearing would probe "specified litigation to which he had been a party, a 1983-84 Postal Service investigation into obscene mail, and information allegedly omitted on various bar application forms."

In December 1988, the bar notified Lubetzky that the hearing also would explore his alleged harassment of "former friends and others."

In the spring of 1989, after several days of hearings stretching over several months and reportedly involving 30 witnesses, the CSB panel decided against Lubetzky and recommended that he not be admitted to the state bar. Lubetzky appealed, but the bar's review department upheld the original decision on Halloween, 1989.

Finally, Lubetzky appealed to the State Supreme Court, which has the last word in such matters. Its decision to review the case last week ended months of limbo.

Thus far, Lubetzky--who is surviving on free-lance law clerking and money from his parents--estimates that his legal battle has cost him $50,000, and could reach $90,000 before the fighting is over.

Because state bar proceedings traditionally are confidential, this kind of dispute normally would not get much attention. But Lubetzky and Richland wanted to make their side of the case public, and agreed to talk to The Times on the condition that the story appear after the Supreme Court decision to review. In April, an account of the dispute appeared in the Los Angeles Daily Journal, a legal trade paper.

While the events surrounding his applications to the state bar were unfurling, Lubetzky devoted much time as the unpaid chairman of the board of CalJustice, an advocacy group that goes to bat for people who claim they have been the victims of unethical practices by attorneys. In that capacity, Lubetzky had a fairly high profile within the legal community, frequently testifying on lawyer disciplinary matters before both the state bar and the California Legislature.

Lubetzky maintains that his rejection by the bar "is an act of retaliation for what I've been doing at CalJustice." His involvement in two civil suits, he says, has served as a "convenient pretext" for his rejection. Attorney Richland believes the process may have been more subtle.

"I'm not sure how much people consciously say, you know, 'Let's get back at Richard Lubetzky,' " he says. "On the other hand, I don't know the extent to which someone looking at the evidence may be predisposed to lean against him by virtue of that fact (of Lubetzky's involvement with CalJustice)."

The latter view has found champions within the state bar itself. In February, Richard A. Annotico, a member of the state bar's board of governors who is not a lawyer, wrote a letter to the State Supreme Court in support of Lubetzky.

"Lack of accountability permits the system to be used to protect perceived friends and punish perceived enemies," Annotico wrote.

"It is my grave concern that something of this nature has occurred in Mr. Lubetzky's case, particularly since his activism on behalf of legal consumers may have caused some within the organized bar to perceive him as an enemy."

But in replying to Lubetzky's Supreme Court appeal, the state bar's attorneys Diane C. Yu, Marie M. Moffat and Roger P. Heyman wrote, "This is clearly not a case in which this Court should or could review the ten volumes of testimony or the over 100 pages of briefs filed by each side. . . . It is a clear case of the Hearing Panel having reached a decision after weighing credibility, with their conclusion confirmed by an unambiguous and conclusive 'smoking gun' fingerprint."

Whatever the reasons for the bar's rejection, Lubetzky's troubles have their roots in a bizarre 1982-83 squabble involving Lubetzky and Robert Friedman, an acquaintance of Lubetzky.

According to attorney Richland's brief, Lubetzky knew both Friedman and his landlord, Robin Spivack, who had invited Friedman to rent a room in her apartment as a protection against neighborhood violence. Friedman, the brief alleges, soon began to create problems in his new home.

"He wanted to remove pictures from the walls and he didn't like the placement of the furniture; he banged on the window and yelled abuses at an elderly neighbor when she did her gardening; later, he cut all the neighbor's flowers and dug up her garden; he had nightmares and would wake up screaming and knocking on the walls; and he would destroy items around the apartment," the brief states.

Spivack evicted Friedman, who told Lubetzky that he did not deserve the ouster. Initially sympathetic, Lubetzky wrote four letters for Friedman to sign, each asserting Friedman's legal claims on the rental.

Shortly after Friedman left the apartment, Spivack and her mother began receiving "hang-up" telephone calls--as many as 20 daily, the brief reports. Similar calls were placed to Lubetzky and to a West Hollywood art gallery where Friedman said he worked.

In late 1983 and early 1984, Richland contends in the brief, Friedman made several obscene phone calls to Lubetzky, twice leaving obscene messages on Lubetzky's answering machine. Lubetzky filed a criminal complaint against Friedman, but the Los Angeles city attorney's office dropped the charges, provided that Friedman receive psychiatric treatment and stay away from Lubetzky.

(Richland's brief also castigates the bar for using against Lubetzky his secret recording of two telephone calls from Friedman. Lubetzky made the recordings after determining that he legally could do so. "The resulting recordings contained admissions by Mr. Friedman that he had made the hang-up telephone calls . . . ," the brief states.)

Around the time of Friedman's eviction, both Spivack and Lubetzky began receiving daily assaults of obscene cards and letters. Friedman received similar mail, and he discussed the matter with Lubetzky, according to the brief.

In this volume of mail was the post card that damaged Lubetzky's chance of practicing law. The post card had a photograph taped to it. "On the sticky side of one of the pieces of tape, there was a fingerprint which was identified as coming from the tip of Mr. Lubetzky's right index finger," states Richland's brief.

Conflicting testimony was given by two documents experts as to when Lubetzky's fingerprint was put on the tape--before or after the post card was created by the sender.

Richland argues in the brief that the state bar's documents expert based her testimony entirely on recollections from the 1983 criminal investigation, not on scientific investigation. On the other hand, scientific examination by another documents expert found "much evidence consistent with the tape having been lifted," the brief states. At any rate, the post card was part of a blizzard of anonymous obscene letters and post cards, according to the brief. Friedman's mother, brother-in-law, dermatologist and podiatrist--as well as the art gallery where Friedman said he worked--also received obscene mail.

In briefs opposing Lubetzky's appeal to the State Supreme Court, attorneys for the state bar argue that Friedman was more credible than Lubetzky.

"Both men (Lubetzky and Friedman) had a history of harassing people whom they felt had slighted or crossed them, but one of the men was clearly lying," the bar's brief states. "Either Mr. Friedman sent obscene cards and letters to himself, his mother and his associates--an inherently unlikely assumption--or Petitioner Lubetzky sent them. . . . The Hearing Panel . . . unequivocally and emphatically concluded that the obscene cards and letters were authored and sent by Petitioner Lubetzky."

The bar's brief also reports that the hearing panel took into account testimony from Friedman's mother that Friedman had a learning disability that would have made it difficult, perhaps impossible, for him to compose the obscene mail. In his brief, Richland hotly disputes this point, arguing that Friedman's ability was the subject of conflicting testimony.

The rancor between Lubetzky and Friedman dates from 1983 when both began accusing each other of sending the obscene mail. During that summer Lubetzky sought a restraining order to prevent Friedman from accusing him of sending the letters and cards.

Then, one evening as Lubetzky and a friend studied for the bar exam, Lubetzky--according to his lawyer's brief--allegedly received a phone call from Friedman. During the call--to which Lubetzky's friend listened--Friedman said that "if Mr. Lubetzky did not drop the restraining order, he would make sure that Mr. Lubetzky would never practice law."

During this call, Friedman allegedly said that he would "accuse Mr. Lubetzky of making homosexual advances to him, and he and his friends would make it appear that Mr. Lubetzky had sent the obscene mail."

At the bar hearing on Lubetzky's moral fitness, Friedman reportedly testified that Lubetzky had made a homosexual advance toward him. Further, Friedman said that because he rebuffed Lubetzky's advances, Lubetzky threatened to sue Friedman and harass him in the courts, the brief says.

Meanwhile, the U.S. Postal Service had begun an investigation into the obscene letters and the Friedman family, who reputedly requested the investigation, had pointed to Lubetzky as the primary suspect.

Lubetzky was never charged, but the accusations prompted him to file a civil suit against Friedman, his family and friends for defamation. Lubetzky lost the case both in trial and on appeal.

Recalling that defeat, Lubetzky sounded very much like the attorney he wants to be: "The defamation case was never adjudicated on its merits. . . . Friedman's attorney demurred on the ground of privilege that defamatory statements made to law-enforcement agencies are absolutely privileged under the civil code as a statement made in an official proceeding authorized by law. The judge, in my opinion, did not research that area throughly enough."

Mark Shragge, a San Francisco attorney and uncle of Robert Friedman who represented the Friedman family in the case, said that despite the rulings against Lubetzky, aspects of the case drag on. For example, a disagreement over who should pay typing costs for legal documents pertaining to the defamation suit is now before the courts, Shragge said.

Attorney Richland believes that Lubetzky was rejected by the state bar because he couldn't prove his innocence, not because the evidence proved he was unfit to be an attorney. One issue involved in Lubetzky's appeal is to fight the bar position that "you've got to prove that you're innocent and we don't have to prove that you're guilty," he said.

Moreover, Richland argues that Lubetzky was penalized for omissions from his bar review application forms. When he first took the bar exam and when he passed the test seven years later, Lubetzky filled out "long" application forms that require a list of all litigation in which candidates have been involved. But on the "short form" applications he filled out each time he took the bar exam, Lubetzky "forgot" to list "intervening litigation," Richland wrote in his brief, characterizing the omission as an oversight.

Lubetzky, in the meantime, said he is confident that he will be vindicated by the Supreme Court. But he also believes that at some point the past should be allowed to pass.

"If you've been through an investigation by a law-enforcement agency and they essentially cleared you, that should be the end of it," he said.

"If you're involved in a lawsuit and that was resolved, that should be the end of that. And if you try to continually re-litigate things from people's pasts in perpetuity, I think (that) is really not only burdensome, it's unreasonable."